Jewish
law may be the best recorded legal system in the history of the world; there
are hundreds of thousands, perhaps millions, of pages of surviving primary
sources covering about twenty-five hundred years. They include compilations of
legal rules, treatises, and responsa―the
equivalent of cases[1]. This chapter provides only
a brief account, based mostly on one volume of Maimonides and the first three
volumes of Jewish Law: History, Sources,
Principles, by Menachem Elon. I begin with a summary of the relevant
history, followed by discussions of problems associated with a legal system
built on a divinely inspired foundation and how they were dealt with,
implications of a dispersed legal system without its own state, and a number of
other features of the legal system and its history. I end by sketching the
content of parts of the law covering more or less what we think of as torts and
crimes.

History

The dynasty of kings of Israel of whom Solomon and David
are the most famous was ended and the first Temple destroyed by the Babylonians
in 586 B.C. After the end of the Bablonian captivity, Israel was under Persian
and then Greek (Seleucid) rule, with local power in the hands of successive
pairs of religious authorities. The Maccabean revolt against the Seleucids
reestablished Israel as an independent kingdom with its own king.

After Roman conquest in 63 B.C., the kingdom of Israel
ceased to exist as an independent state, becoming subject to first indirect and
then direct Roman rule. The second Temple, which played an important role in
legal and religious matters, was destroyed by the Romans in 70 A.D. The Bar
Kochba revolt of 132-136 A.D. resulted in many Jews being killed, emigrating,
or being sold into slavery, and so ended the role of Israel as the effective
center of Judaism.

Thereafter, until the reestablishment of the State of
Israel in the 20th century, the Jewish population consisted of dispersed
communities living under the authority of non-Jewish rulers. Such communities
were subject from time to time to persecution or even expulsion. But for the
most part, they enjoyed judicial autonomy. Gentile rulers, Christian and
Muslim, found it convenient to subcontract the job of ruling―and
taxing―their Jewish subjects to the local Jewish authorities. The ruler
set the total tax burden to be imposed on the community, the local authorities
were responsible for allocating it among the residents and settling disputes
among the community’s members. Thus Jews in the diaspora lived largely under
Jewish law.

In some cases, the delegation of authority seems to have
been carried to extraordinary lengths. Under Jewish law, “informing,” giving
gentile authorities information about a fellow Jew injurious to him, was a
crime. At some times and places, informing three times was a capital offense.
Someone convicted of a capital crime was executed by the (gentile) mundane
authorities. It follows, if Elon’s account of the situation in Spain is
correct, that under some circumstances the gentile authorities were willing to
execute a Jew for the crime of betraying information about other Jews.
Betraying it, presumably, to the gentile authorities.[2]

This situation was ended by the emancipation―the
freeing of European Jews from legal restrictions―that began in Europe in
the late 18th century. Increasingly, Jewish inhabitants of European states were
treated as ordinary citizens, subject to the same laws as everyone else.

Problems
of Divine Law

Jewish law was, in theory, based on a single
unchangeable source―the Torah, aka the Pentateuch, the first five books
of the Old Testament. Basing the law in this way rather than in custom,
precedent, or legislation raised two problems, shared with other legal systems
similarly based, including Sharia and American Constitutional law. One was the
problem of legal uniformity: If judges, who were also legal scholars, disagreed
about the meaning of the sometimes ambiguous text, how were their disagreements
to be settled?

In a system which views law as the creation of some
authority such as a legislature, king or court of last resort, the same
authority that made the law can settle any disagreement about it. That does not
work for a legal system viewed not as created but as discovered, deduced from
divinely inspired sources. No scientist believes that whether or not a
scientific theory is true can be determined by majority vote―that if
enough scientists had disagreed with Newton, stones would have fallen up
instead of down. No more can a scholar of Sharia
believe that whether a hadith, a
tradition of the prophet, is true or spurious is determined by majority vote of
the scholars of tradition, or a Jewish sage hold a corresponding belief with
regard to an interpretation of the Torah.
Yet, in order for a legal system to function, there must be some way of
determining what the law is.

A
second problem was the problem of legal change. If legal authorities[3] concluded that some of the
divinely inspired rules were mistakes or had been rendered obsolete by changed
circumstances, how could they be revised? The history of Jewish law is in large
part the history of solutions to those two problems, along with the problem of
maintaining a consistent legal system across a multitude of independent
jurisdictions, with no court of final resort to settle conflicts.

The
Problem of Legal Uniformity

The solution to the problem of legal uniformity was a
simple one. Truth is not determined by majority vote, but law can be. Basing
their view on a verse in the Torah advising people, if there were disagreements
about difficult legal issues, to accept the view of the majority, the legal
scholars took the position that the interpretation to be followed by judges was
determined by the view of the majority of legal scholars. Starting in 191 B.C.,
this doctrine was implemented through the Sanhedrin, a combined
legislature/supreme court made up of a fixed number of legal authorities.
Disputed questions of law reached it through a series of lower courts to be
decided by a majority vote of its members. Judges who disagreed were free to
continue to argue for their position but required to judge cases according to
the majority view. With the demise of the Sanhedrin―its last official
judgement was given in 358 A.D.―the doctrine that the law was in accord
with the views of majority was implemented through less clearly defined
reputational mechanisms, a point I will return to in my later discussion of law
in a decentralized system.

Defining law by the views of the current
majority―one part of the doctrine as it developed was that the law was in
accord with the views of the later, hence in the limit still living,
authorities―created a tension between law and religion. If a legal
scholar disagreed with the majority view on what made food pure or impure, was
he obliged to consume offered food that, in his view, God forbade him to eat?
To destroy food that, in his view, was entirely kosher? To maintain his own
view of the matter while refraining from giving advice based on that view to
others? This became a live issue in the disputes between the schools of Hillel
and Shammai, two prominent legal scholars who, in the first century B.C.,
taught different interpretations of the law; their disagreement was continued
by their students through several generations.

For some time the two schools, while debating their
views at length―sometimes with one persuading the other, sometimes
not―maintained amicable relations. Members of each were willing to eat in
the houses of members of the other school and to marry their daughters, despite
potential problems with differing views on ritual purity, the law of marriage
and divorce, and similar issues.

Both the final breakdown of toleration and the policy of
preferring legal uniformity over religious truth are summed up in the Talmudic
account of the debate between Rabbi Eliezer, a leading figure in the school of
Shammai, and the sages, led by Rabbi Joshua. The subject was the oven of
Akhnai, which the former held to be ritually pure, the latter ritually impure.[4]

After R. Eliezer had brought out every possible argument
for his position without persuading his opponents, he finally put the question
to God. "If the Halakhah is in accord with me, let this carob tree prove
it." The carob tree promptly uprooted itself and was moved 100 cubits
away―by some sources 400 cubits. R. Joshua's reply? "No proof can be
brought from a carob tree."

The debate continued, and R. Eliezer produced two more
miracles in support of his position; R. Joshua remained unconvinced. Finally,
Eliezer called out for more direct support, and a heavenly voice responded:
"Why do you debate with Rabbi Eliezer, seeing that in all matters the Halakhah is in accord with him."

To which R. Joshua replied, "It is not in
heaven." His position was summed up by another Rabbi as "The Torah has already been given at Mt
Sinai. We pay no attention to a heavenly voice because You have already written
in the Torah at Mt. Sinai, 'Follow
the Majority.'" The law had been entrusted to the care of man, hence it
was no longer God's view that mattered but the view of the human sages, not
objective truth but a human decision rule. God's view might determine what was
true, but the view of men, halakhic authorities, determined what was law.[5]

The
sages, unconvinced by either arguments or miracles, put Eliezer under ban,
excommunicated him.[6] A second story describes
how the conflict between the two schools was finally ended―by a heavenly
voice that said "the words of both are the words of the living God, but
the law is in accordance with the school of Hillel."

Put
in less mythic terms, the argument was that the law had been entrusted to the
care of man. God's view might determine what was true, but the view of men,
halakhic authorities, determined what was law. A sage as scholar might argue
for a position rejected by the majority. But as judge, he was forbidden to
treat that position as the law.[7]

Seen
from inside the belief system, the story of the oven of Akhnai suffers from a
consistency problem; why didn't the sages take God's word for which side of the
argument was right and change their vote accordingly? Seen from the outside,
however, the story can be interpreted as the solution to a serious danger. The
basis of Jewish law was supposed to be divine authority working through the
prophet Moses. What prevented a charismatic leader who claimed to speak for God
from setting himself up as a new final authority on the law? Real miracles are
in scarce supply, but apparent miracles may not be.[8] Hence the story can be seen
not only as the justification for the suppression of the school of Shamai but
as a prophylactic measure to prevent future splits due to charismatic leaders.

There
is an interesting parallel between the conflict between the two schools of
Jewish law, ending in the victory of one of them, and the development of Muslim
law almost a thousand years later. In the early centuries of Islam, Sunni legal
scholars divided themselves into four schools of law, based on the teaching of
four of the early legal scholars. The schools differed in details of legal
interpretation, but regarded each other as mutually orthodox―and still
do.

While
the Sanhedrin functioned, it provided a mechanism for determining what the view
of the majority―not the majority of men but the majority of sages, of
halakhic authorities, of men learned in the law―was. For some centuries
thereafter, the prestige of the Babylonian academies was sufficient to provide
a substitute. As that declined, the problem reappeared.

One
form it took was an argument that could be offered by the defendant in a case.
In order for the court to punish him―to, for instance, transfer his
property to the plaintiff―it had to be certain that he was guilty. One
source of uncertainty concerned the facts of the case. But even if the facts
were clear, there remained legal uncertainty. So long as at least one of the
recognized authorities, living or dead, supported a reading of the law under
which the defendant was innocent, there was reasonable doubt, hence he could
not be convicted. The need to resolve that problem was one argument in favor of
recording and teaching the law in the form of a legal code, an unambiguous
account of what the rules were, rather than in the form of a history of
arguments for and against alternative interpretations.

The Problem of Legislation

The
second problem faced by a system based on a fixed and authoritative legal text
is how to change rules unsuited to current conditions or add new rules to deal
with issues not covered in the original. The biblical answer is clear: no
commandment is to be removed,[9] no commandment is to be
added,[10] the law must remain as God
made it.

The
first and simplest solution to this problem was interpretation (Midrash). Much of the text was at least
arguably ambiguous, so scholars could and did intepret it to fit what they
believed it ought to say. Since the text itself authorized the scholars to
resolve ambiguity by majority vote, they could reasonably claim that they were
not modifying Torah but merely obeying it. Over time, elaborate rules of
interpretation developed, some of which, as applied by some scholars, made it
possible to read into the details of the wording of biblical verses additional
commands.

Support
for this practice was provided by the doctrine of the oral Torah. This, it was
held, was a supplement to the written Torah transmitted by God to Moses on
Mount Sinai and from Moses in a chain of oral transmission down to later
scholars. The oral Torah provided, among other things, interpretations of the
text of the written Torah. Hence scholars could defend on its basis
interpretations that could not have been plausibly derived from the actual
language of the text.

Consider the case of the disobedient son. The Torah
prescribes death by stoning for a child who defies his parents. Some legal
authorities chose to read into the wording of the biblical verse requirements
that could not in practice be satisfied―for instance, that the mother and
father bringing the accusation must have identical voices and be identical in
appearance. Maimonides argued that a boy below the age of thirteen could not be
held responsible, that a boy of thirteen might impregnate a woman, a fact that
would be known in another three months or so, at which point he would be a
father not a son, hence that the prescription could only apply to a boy aged
more than thirteen and less than thirteen and a quarter. In his view, the
combined effect of the restrictions that could be read into the biblical
passage was that the stated rule never had been and never would be applied.

The next step was to interpret Torah[11] as
authorising not merely interpretation but legislation―including
legislation permitting acts forbidden by the Torah or forbidding acts
permitted, even required, by the Torah. A variety of arguments were offered for
the appropriateness of such legislation. They included the claim that
additional prohibitions constructed a fence around the Torah―prevented
people from doing things even close to what was forbidden and thus made
forbidden acts less likely. Also the argument from necessity, that “It is
better [one letter of] the Torah should be uprooted so that the [entire] Torah
will not be forgotten by Israel.” Also the claim that the legislation in
question was only temporary.[12] The
prohibition against adding to or subtracting from the rules of the Torah was
held to imply only that other legislation was on a lower level, did not claim
the same biblical authority as the law of the Torah. Such legislation however
could and did authorise the performance of acts forbidden by that law[13] and
the omission of acts required by it.[14]

Under biblical law, all debts were to be
cancelled every seventh year. This raised a problem for someone who wanted to
borrow money in the sixth year from a lender who could not expect to ever get
his money back. The problem was recognized in the original text, which urged
lenders to lend to their fellows even in the sixth year. It was eventually
dealt with by Hillel, who constructed a legal form, Prosbul, which permitted the creation of a debt immune from
cancellation in the seventh year.

The
Torah forbids Jews from lending to other Jews at interest. Contractual forms
were designed to evade that restriction in substance while obeying it in form,
and rules about the sharing of profit between partners one of whom contributed
capital and one labor were developed in part in an attempt to prevent such
evasions.[15]

The
result of these developments was a legal system based in theory on Torah but in fact largely on rabbinic
interpretations of Torah, many of them far from the literal meaning of the
text,[16] and rabbinic legislation,
some of it in direct violation of the text.[17]

While law existed in the written Torah and the teaching
and writing of legal scholars, there was no written code, at least none that we
know of, until the production of the Mishnah
in about 200 A.D. It provided what was intended to be a complete collection of halakha, legal rules, along with
associated materials. Unlike a modern law code, the Mishnah did not state what the law actually was. Instead, it
offered arguments attributed to sages of the past for alternative
interpretations of the law, rather like a modern case book. Some later scholars
believed that Rabbi Judah haNasi, the author of the Mishnah, signaled which of the interpretations he thought correct
by the way in which he referred to them. Others disagreed.

The
Mishnah was followed by several
centuries of scholarship and debate, mostly in the Babylonian academies but
also in centers of Jewish learning elsewhere, especially in Israel, over its
meaning and implications. The record of those debates, along with the Mishnah itself, made up the two
Talmuds―the Babylonian Talmud, produced in the Babylonian academies, and
the shorter, less complete, and less authoritative Jerusalem Talmud.

One
might expect several centuries of argument over the meaning of law code to
result in some degree of clarification, but the actual result was the opposite.
The discussions in the Talmud add to the ambiguity of the original, itself due
to reporting the different views of different sages, a further ambiguity in
interpreting those views. Consider the question of tort liability when someone
stumbles over a pot left in the public path.

Mishnah: If someone leaves a jug in a public
place and someone else comes along, stumbles over it, and breaks it, he [the
one who breaks it] is not liable; if he [the one who breaks it] is injured by
it, the owner of the jug is liable for the injury.

Babylonian Talmud: “It was said in the school of Rav in
the name of Rav: “[The mishnah is
referring to a case where] he filled the entire public area with jugs [and,
therefore, the passerby who broke the jug is not liable as he had no
alternative but to do so in order to proceed].”

Samuel
said: “The reference is to a dark place [The mishnah is referring to a special situation―a dark place
where a traveler could not see what is lying in the street].”

R.
Johanan said: “The reference is to a corner [the special circumstance is that
the jug was placed in the intersection of two streets, and when the traveler
turned the corner he did not see the jug and broke it.]”

All
three conclude that the traveler normally is liable for the damage, in direct
contradiction to the plain language of the mishnah.

Once
the Talmud was complete, legal scholarship was built on three layers. The first
was the Torah. That was followed by
rabbinic legislation and commentary and interpretation based on the Torah, culminating in the Mishnah. That was followed by commentary
on the Mishnah, culminating in the Talmud. Scholarship thereafter consisted
largely of commentary on the Talmud―which
had, in effect, the previous two layers embedded in it―along with
additional legislation. Further layers were added as one or another work based
on those sources―the Mishneh Torah
of Maimonides is one example―itself became the subject of further
commentary.

Communal
Authority

Over time, a further issue arose in the communities of
the diaspora―communal legislation. Both biblical and rabbinic law applied
to all Jews everywhere. If the special circumstances of a community required
special legal rules, how were they to be produced? If the community did not
contain a sufficient number of individuals learned in the law, who was to
produce them?

The eventual solution was to hold that the communal
authorities could function both as a court and as a legislature. One basis for
that claim was the argument that, back when the kingdom of Israel existed,
there was legislation by the King as well as by the scholarly authorities, and
that the communal authorities had inherited the king’s authority. It was
further argued that since royal legislation was independent of the whole system
of Torah,[18]
Sanhedrin, and rabbinic law, communal legislation need not be restricted by, or
even consistent with, either Torah or
rabbinic law―it was sufficient that it be in the (vaguely defined) spirit
of Jewish law. A second, and perhaps more telling, justification was that the
communal regulations were in practice necessary for the survival of the Jewish
community in an environment very different from that in which the religious law
had developed.

How
far the argument was carried varied from time to time and place to place.
According to one version, if there was at least one legal scholar in the
community, the communal authorities could legislate only with his approval; if
there were none, they had a free hand.

A
further distinction had to do with what the limits were. It was argued that the
communal authorities had a free hand with regard to mammon, laws dealing with the relation between man and man, such as
tort, crime, and contract. The rules of mammon could be modified by the parties
to a contract, so if the community was thought of as bound by a sort of social
contract unanimously assented to, it too could modify those rules. But humans
had no power to modify their obligations to God, hence the community was not
free with regard to issur, religious
law. We will return to one implication of this distinction in a later section
of the chapter.

Some
legal authorities held that the communal authorities could forbid what
religious law permitted but could not permit what it forbade or forbid what it
required. In practice, at least in matters of mammon, that restriction was frequently violated. Thus, for
instance, courts enforcing secular rules were able to accept witnesses
unacceptable under religious law, such as those related to a judge or one of
the parties―arguably necessary in a small community where practically
everyone was related to everyone else. Courts were permitted to impose the
death penalty without satisfying the extremely restrictive conditions of
religious law, such as the requirement that in order for the defendant to be
liable to capital punishment he must be shown to have been told, independently
by two different people, that what he was about to do was a capital offense.
Courts were permitted to imprison debtors for failure to pay their debts,
something explicitly forbidden under religious law. The final result was to
add, on top of the Talmud and interpretation thereof by legal scholars, a final
layer of communal law, varying from community to community.

The communal authorities in devising rules faced some
problems connected with the limited nature of their authority; their attempts
to revise marriage law provide one example.

Under biblical law, marriage was quite simple, requiring
only the assent of the parties, two witnesses, a written contract, and the
giving of a ring or similar token by groom to bride.[19] In
many of the communities of the diaspora these requirements were seen as
inadequate, possibly because they provided parents with very little control
over their daughters choice of a husband.

The solution was to supplement the requirements of
biblical law with additional requirements of communal law. This solution in
turn raised a problem, given the widely accepted view that communal authority
was limited to matters of Mammon.
Suppose a marriage took place that was legal under biblical law, illegal under
communal law. The communal authorities held that the bride was not married,
hence was free to marry someone else. But under biblical law she was married,
hence for her to marry someone else was a violation of biblical law, a
violation of Issur, religious law,
which the communal authorities had no power to change.

One
ingenious solution hit upon by the communal authorities was to argue that while
the marriage was Issur, the wedding
ring, being a piece of property, was mammon.
If a marriage was celebrated without satisfying their requirements, the
communal authorities held that the ring was forfeit to them. Since the groom
did not own the ring, the requirements of biblical marriage had not been
satisfied, hence the bride was not married and was free to marry someone else.

What
is interesting about this solution, other than its ingenuity and somewhat
dubious logic, is that the communal authorities who offered it proved reluctant
to follow through in practice on their legal theory. Over time, fewer and fewer
held that it was an appropriate solution to the marriages they disapproved of.
One possible reason is that marriage law was an issue that cut across
communities. Suppose a woman whose marriage had been declared non-existent
under the doctrine went on to marry a husband from a different community, one
that did not accept the legitimacy of retroactive communal cancellation. Once
the fact came out, he would discover that his marriage was in violation of the
law, any children momzers―children
of a couple who not only were not married but could not have been married.

Perhaps
to avoid this problem, communal authorities fell back on a simpler solution, and
one arguably more consistent with biblical law. A marriage under conditions in
violation of the communal rules was still a marriage but, like any other
marriage, could be ended by a divorce. A divorce required the assent of the
husband, but that assent could be compelled by imprisonment, flogging, and
similar methods.[20] Once the divorce was given,
the wife was free under biblical law, hence free to marry in any community. The
same solution made it possible for courts to eventually decide that a divorce could
be claimed by a wife as well as given by a husband. The wife could not
literally divorce her husband, but she could persuade a court to compel her
husband to divorce her.

Controlling Who Your Daughter
Marries: Two Legal Systems

Why
were the communal authorities so interested in expanding the biblical
requirements for marriage? Discussions in response refer to women married by
trickery or fraud, but there is an alternative explanation suggested by some of
the surviving accounts:

…but what is not good are the tales God’s people spread
about, and their gossip and complaints against the young man, Naḥshon, concerning whom there are
rumors spreading through the Jewish community that he married her in the dead
of a dark night in the presence of two competent witnesses and with the consent
of that young woman. …

She herself stated to the court during her interrogation
that, looking through the window, she saw two or three men with Naḥshon, the groom … This being so,
she was married in the presence of two witnesses … Consequently her contention
that she was only jesting is not credible, because it is not a frivolous matter
to lower down a crimson cord from the window to get the ring, considering the
tenor of what they were saying at the time this was done. (Resp. Naḥalat Ya’akov #57, responsum
written in 1615. Elon /872-3)

Since the first man did negotiate a marriage to her, perhaps
the girl agreed to the marriage even though she later threw away the ring as
directed by her mother; … (Resp. raban, IH, III, P. 47b (ed. Jerusalem) Elon p.
848-9) 12thcentury.

These
accounts, and the form of some of the communal restrictions, suggest that the
restrictions were intended in part to increase parental control over their
daughters’ marriage. There are obvious reasons why parents would want such
control. The biblical rules, which set twelve and a half as the age of female
adulthood and required nothing beyond two witnesses, consent, and the transfer
of some item of value from groom to bride with the appropriate words, provided
them no way of getting it.

The
issue struck me as interesting in part because I had come across it before, in
a very different context―Anglo-American common law. I quote from my Law’s Order.

A few years back, while investigating
the history of punitive damages, I stumbled across an odd and interesting bit
of nineteenth-century law. In both England and America, when a man discovered
that his daughter had been seduced he could sue the seducer―even if the
daughter was an adult. The grounds on which he sued were that he, the father,
had been deprived of the daughter’s services. Suits for seduction were thus
treated as a special case of the doctrine under which a master could sue for
injuries to his servant.

In one case a judge held that it was
sufficient basis for the action if the daughter occasionally acted as hostess
at her father’s tea parties. Once the father had standing to sue as a master
deprived of his servant’s services, he could then base his claim, not on the
actual value of the services, but on the reputational injuries suffered by the
family as a result of the seduction.

The obvious question is why, given
that seduction was considered a wrongful act, the law took such a roundabout
approach to dealing with it. The explanation I found in the legal literature
was that one party to an illegal act cannot sue another for damages associated
with the act. If you and I rob a bank and you drop the loot on the way out, I
am not entitled to collect damages for your negligence. Fornication was
illegal, hence a seduced woman was party to an illegal act, hence she could not
sue for damages. So the law substituted the legal fiction of the father suing
as a master deprived of his daughter’s services.

It occurred to me at the time that
there was another, and perhaps more plausible, explanation of what was going
on. In traditional societies, including eighteenth- and nineteenth-century
England, fathers attempt to control whom their daughters marry. One tactic
available to a daughter who disagrees with her father’s choice is to allow
herself to be “seduced” by the man she wants to marry, in the expectation that
her father, faced with a fait accompli and possibly a pregnancy, will give his
consent. That tactic appears explicitly in Casanova’s Memoires, which provide a
vivid and detailed first hand account of life in eighteenth-century Europe.[21]

A legal doctrine that gave the
daughter the right to sue would lower the risk of the daughter’s tactic for
evading parental control by making it possible for her to punish a seducer who
refused to marry her, and would thus weaken paternal authority. A legal
doctrine that gave the father control over the action gave him a threat that
could be used to discourage enterprising, and unacceptable, suitors.

Law Without a State

While the Kingdom of Israel existed, it provided a
mechanism for maintaining legal uniformity. Even after its destruction, the
Sanhedrin was for some centuries viewed as the authoritative decider of legal
disputes. When the Sanhedrin losts its authority, it was taken up by the heads
of the Babylonian academies, the Geonim, viewed as the leading experts on the
law. Judges throughout the diaspora, faced with hard legal problems,wrote up
their cases and sent them to the Geonim, who sent back responsa, statements of how the cases ought to be decided.

By about the eleventh century, the Geonim as well had
lost their authority. From then on, legal disputes were settled either by
recourse to expertise within the same region as the judge faced by the
problem―Spain, France and Germany, later Poland, …―or by recourse
to a scholar elsewhere seen as one of the leading authorities then living. The
result, for biblical and rabbinic law, was something less than perfect
uniformity but more uniform than one might expect out of a system in which
there was no court of last resort.

From time to time some particularly respected and
energetic authority would attempt to write up a complete summary of the law,
either in the form of a book of Halakhah, giving for each legal rule the
opinions and arguments of multiple authorities―ideally all authorities
that had written on that rule―or a simple summary of the correct rule for
every issue; the Mishnah Torah of
Maimonides is one of the best, and best known, examples of the latter form.
Such a book might be accepted as authoritative by at least some judges across a
considerable range of communities. The final successful effort of that sort, by
Joseph Caro in the 16thcentury, consisted
of two connected books―the Bet
Yosef, which gave for each law the opinions and arguments, and the Shulhan Arukh which provided, in a
parallel structure, what the author considered the correct rule in each case.
That, with the addition of extensive commentary and updates to cover more recent
decisions and legislation, became the authoritative legal text for almost the
entire diaspora.

Ideally,
a judge ought to know everything―including all of the arguments made over
the centuries for alternative interpretations of the legal rules that might
apply to a particular case. In 200 A.D., when the law consisted, for practical
purposes, of the Mishnah--a modern translation runs to about eight hundred
pages--that might have been possible. By 500 A.D. the law consisted of the
Talmud, a much longer and more elaborate document containing the Mishnah,
itself embedding arguments over the law, plus extended discussion of what the
Mishah meant, along with a variety of other material. By 1000 or 1500 A.D., the
law consisted not only of the Talmud but of an extensive literature of
treatises explaining and interpreting the Talmud, responsa―answers written by legal authorities to questions
submitted to them on the law―and other documents.

One
response was to produce, for the use of judges, a law code, a simple statement
of legal rules giving only the interpretation that the author of the code
considered correct and leaving out the arguments, biblical or otherwise, for
and against it. That was what Maimonides did in the twelfth century. His work,
while widely accepted and used, was also widely criticized on the grounds that
a judge had to know not only what Maimonides thought the legal rule was but the
entire background needed both to evaluate his view and to fully understand it.
A later scholar, Rashba, writing about a century later, followed Maimonides in
compiling a statement of the legal rules but supplemented it with another
volume, organized in parallel, offering the sources for those rules; the same
approach was taken still later by Joseph Caro. Over a period of many
centiuries, Jewish legal scholarship shows an alternation between attempts to
write law codes summing up the rules and attempts to describe the law in its
full historical complexity.

Explanations of What May Not Be Obvious

There are a number of features of the legal system that
show up in multiple contexts and may seem puzzling to a modern reader. They
include:

The
Burden of Proof and the role of Oaths

Burden of proof is a familiar issue in our legal system,
but Jewish law adds an additional complication in the form of oaths. The
pattern appears in many places; the following is an example.

John says "I am missing a cow, and I suspect that
William stole it." William denies stealing it, and there are no witnesses
or other evidence. John's case is dismissed by the court.

John says "I am missing a cow, and I saw William
steal it." William denies stealing; again there are no witnesses. It is
still a "he said/he said" case, but John is now making a claim
certain rather than a claim uncertain; if John is an honest man, William is a
thief, which was not true in the previous case. The rule this time is that
William may "swear and be quit." If he is willing to swear to his
innocence in the prescribed form, John's case is dismissed. If, however, William
is unwilling to swear, John prevails; William is found guilty and owes damages.

Shift the facts to make John's case a little stronger,
and now it is John who swears and takes. If he is willing to swear that what he
says is true, he wins the case. If he is unwilling to swear, he loses. Shift
the facts even further, perhaps by adding two witnesses to the act, and John
prevails even without swearing.

A further complication, in some but not all cases, is
for the party who is obligated to swear to be given the option of shifting the
oath. Instead of swearing to the truth of his claims, he requires the other
party to swear to the truth of his. If the other party does swear, he prevails.
A suspect party, one who is known to have sworn falsely in the past or to have
violated any of various rules of religious law, is not permitted to swear, and
so loses in a case where his oath is required for him to prevail.

This suggests one way in which religious requirements
such as the koshruth rules, the rules determining what a religious Jew is or is
not permitted to eat, may serve a secular purpose. Careful observance of such
rules is evidence that the observer believes in the religion, since he is
willing to bear substantial costs in order to conform to its requirements. The
fact that he believes in the religion means that he will be reluctant to swear
falsely, for fear of supernatural punishment. Hence the requirements provide
courts with a lie detector―something very useful in settling disputes.

The treatment of these cases in Maimonides suggests two
things. First, parties are reluctant, although not always unwilling, to swear
falsely, so the willingness to swear provides some evidence of the truth of
what they swear to. Second, parties may be reluctant to swear even to what they
believe is true, perhaps because they are afraid that if they have made a
mistake they will be subject to supernatural punishment―or that, if the
court mistakenly concludes that they were lying, they will not have the option
of swearing in some later and more important case.

Legal Inertia: Letting the Money Lie Where it Falls

Sometimes the just resolution of a legal dispute is
unclear. A tortfeasor owes damages to his victim, but it is not certain whether
the case falls into a category that implies half damages or quarter damages.
The document describing the amount of a loan is worded ambiguously, due to
careless drafting. What is the court to do?

The court awards the smaller sum, on the theory that it
is not entitled to force someone to give something up unless it has clear proof
that he is obliged to, hence it can force the defendant to pay a quarter but
not a half, the creditor to pay only the smaller amount consistent with the
document. If, however, the plaintiff has seized property of the defendant worth
half damages, or the lender has seized property corresponding to the reading of
the document more favorable to him, the court will not force him to give any of
it up.

That seems odd to a modern reader, but it makes logical
sense. The court is not sure the defendant owes more than a quarter, so will
not force him to pay more than a quarter. The court is not sure the plaintiff
is entitled to less than a half, so if he has taken half the court will not
make him give any of it back. It is no more illogical than a modern court that
is confident that one or the other of two suspects is guilty of a crime but
acquits both, on the grounds that neither can be shown guilty beyond a
reasonable doubt.

The pattern described suggests that the law we see may
have been constructed on the ruins of an older feud system in which parties
vindicated their rights themselves rather than relying on courts to do it for
them. Additional evidence for the same view appears in criminal law. Where a
killer’s offense is ruled less than capital, the avenger of blood, the kinsman
of the victim, is still in some circumstances entitled to kill him.

Guaranteeing Debts and Uncertain Ownership

A debt can
be guaranteed with a pledge―the modern practice of pawning property. It
can be "hypothecated," guaranteed with the equivalent of a mortgage
against a specific piece of property. But the default rule is that a debt is
guaranteed by all of the owner's property―initially only his real
property but in later law movable property as well.

The effect of that rule runs through substantial parts
of the law. John borrows a hundred zuz from William. John subsequently sells a
field he owns to Henry. When the debt comes due, John tells William that he
doesn't have the money to pay it. William goes to court to claim property of
John's worth a hundred zuz, only to discover that John's remaining property is
worth only fifty. He claims that, and in addition claims from Henry the field
that John sold him, or at least fifty zuz worth of it. The field was encumbered,
hence John could not give clear title to it. Henry, having lost the field he
paid John for, now has the right to demand his money back. But he won't get it
if, as the sequence implies, John at this point has neither money nor property.

One implication is that it matters when money was
borrowed and when land was sold. Land that was sold before the debt was
incurred is not encumbered; land sold afterwards is. Another implication is the
opportunity for putative creditor and putative debtor to collude in order to
swindle a third party purchaser.

John
sells his field to Henry and then conceals his assets. William claims that John
previously owed him money. William has no documentary evidence of the
debt―but John does not contest it. If the court believes the claim,
William now can seize the field that John sold Henry, leaving William and John
together in possession of both the field and the money paid for it.

Because of such possibilities, the court may be
reluctant to accept the existence of an undocumented debt, even if both
putative creditor and putative debtor support it.

Tithes and Heave Offerings

Under religious law, producers of agricultural produce
are supposed to pay a "heave offering"--from 1/40th to 1/60th of the
crop, to be given to the priests. The heave offering can only be consumed by
priests or their families. They are also supposed to give a tithe, ten percent
of the crop, to the Levites--a tribe of hereditary semi-priests. The Levites in
turn are required to give the priests a heave offering from that tithe. The
producer is then supposed to give a second tenth either (depending on what the
year is in the seven year sequence) to the poor or to himself. In the latter
case he is required to consume it in Jerusalem, with the alternative of selling
the produce and using the money to buy something else to be consumed in
Jerusalem.

This set of rules shows up indirectly in at least two
contexts. One is the discussion ofunder what circumstances the daughter of a priest is permitted to eat
heave offering. This is a marker of her status, whether she counts as a member
of her father's family, her husband's--he may not be a priest--or her son's,
after her husband has died or divorced her. One also gets discussions of the
obligations of someone who buys or is given produce without knowing whether or
not the obligatory transfers have been made from it.

Momsers and Bastards

The
Hebrew "momser" is
sometimes translated as "bastard," and has that meaning in some
modern contexts. In Jewish law, however, it meant someone whose parents not
only were not married but could not be married because their marriage would be
in violation of Jewish law. One example would be the child of an incestuous
union. Another would be a child produced by his mother's adultery; his father
could not have married his mother because she was already married, and Jewish
law permitted multiple wives but not multiple husbands. A third would be the
child of a man by his wife's sister;the law did not permit a man to be married to two sisters. A bastard who
was not a momser, the child of a
couple who were not married but could have been, had the same legal rights as
the child of a married couple.

Legal
Substance

This
chapter so far has focussed almost entirely on how the law developed and was justified.
Readers interested in the substance of the law can find a detailed account in
the Mishnah Torah of Maimonides.
Volumes 11-13 cover the topics of a modern law code, including tort, criminal,
contract, and property law; most of the rest of the book deals with religious
law. The following sections sketch a few parts of the law.

Tort

Jewish
law classifies torts by analogy to four examples: The goring ox, the grazing
ox, the pit, fire.[22]

Consider
an ox that gores another animal. Under ordinary circumstances, the owner of the
ox owes half the damage done to the injured animal, up to the value of the
animal that did the goring; the assumption is that the owner could not have
anticipated the act and so is not fully liable. If, however, the ox has gored repeatedly
in the past, the owner has been forewarned of the danger and so is liable for
the full amount of the damages—the equivalent of negligence in
Anglo-American common law. And there are five species, including wolf and lion,
for which the owner is considered automatically forewarned, hence always
responsible for the full damage. The modern equivalent is strict liability for
ultrahazardous activites.

If
the ox does damage by grazing on someone else’s crop or stepping on someone
else’s property and injuring it, the owner is liable for the full amount of the
damage, because those are things oxen normally do, hence the owner is
automatically forewarned. That does not apply if the ox is on his owner’s
property, the public road, or a courtyard used by both parties. But even in
such places the owner is liable if the ox gores, kicks, or bites—for half
damage if he is not forewarned, full damage if he is.

A
pit, unlike an ox, is a fixed hazard. The rule on liability by the owner
depends on whether the damage suffered by falling into a bit was predictable.
Thus there is no liability if an animal falls into a shallow pit and somehow
dies, but there is liability for injury due to falling into such a pit.

The
fourth category is fire, a hazard that spreads. Provided that the fire starts
on your property, the basic rule, as in much of modern tort law, is negligence;
you are not liable if you took what should have been adequate precautions. If
you are responsible for kindling a fire on someone else’s property, on the other
hand, you will be liable for the damage.

Theft and
Robbery

Jewish
law distinguishes between theft (secret taking) and robbery (open taking). A
thief owes the victim twice the value of what was taken,[23] unless he confesses
voluntarily, in which case he is only obliged to pay the value.

A
steals something from B, sells it to C. When the theft is discovered, who has
what rights to the property?

The
simple answer is that B gets the property back but must compensate C for what
he paid for it; it is then up to B to sue A to get his money back. This does
not apply if the A is a notorious thief, presumably because C should have
realized that he was buying stolen property. Hence in that case, B gets the
property back from C, and it is up to C to sue A to (try to) get his money
back. Nor does it apply if the owner has given up hope of getting back his
property; in that situation the buyer gets good title to the stolen property.
If the thief was notorious, the buyer must compensate the original owner for
the value of the property, but not otherwise. One interesting feature of these
rules is that the thief owes compensation but does not receive any other
punishment, except in the special case where he is a minor or slave. Not only
is there no additional punishment, Maimonides describes situations where the
thief has improved the stolen property and is entitled to some compensation for
doing so.

Perhaps
more surprising, from the modern perspective, the penalty for a robber is
merely the obligation to return what he has taken; unlike the thief, he does
not have to pay twice its value. This has one possible downside; on a strict
reading of biblical law, a robber who has stolen a rafter and built it into a
building must pull down the building in order to return the rafter to its
owner. Rabinic law, however, modified that rule, “for the benefit of
penitents,” to permit the robber in that case to simply repay the value of what
he took.

Wounding

Maimonides begins the chapter “On Wounding and Damaging”
by listing five effects of an injury that require compensation: Damages, pain,
medical treatment, enforced idleness, and humiliation. As the chapter goes on
he describes under what the circumstances the person responsible for the
wounding owes compensation for some or all of those categories, and how the
compensation is to be calculated. For instance:

“How are damages determined? If one
cuts off another’s hand or foot, we determine—as if he were a slave being
sold in the market—how much the injured man was worth previously and how
much he is worth now. The offender must then pay the amount by which he has
diminished the other’s value, for when scripture says, an eye for an eye … it is known from tradition that the word
translated for signifies payment of
monetary compensation.”

And, in a passage likely to appeal to a modern economist
wedded to the principle of subjective value:

“How is pain assessed in a case where
one has deprived another of a limb? If one cuts off another’s hand or his
finger, we estimate how much more a person of his status would be willing to
pay for having his limb removed by means of a drug than for having it cut off
with a sword, should the king decree that his hand or his foot be cut off. The
difference thus estimated is what the offender must pay for the pain.”

Maimonides also considered the situation where the whole
was less than the sum of the parts. If a man suffered a sequence of injuries
for each of which he was owed damages, the total was capped at the value of his
life.

The difference between intentional injury and accidental
injury, crime and tort in our system,[24] seems
to have been of only secondary importance to Maimonides. Intentional injury
makes the party liable for all five effects, but so do some (but not all) forms
of accidental injury. What we think of as criminal punishments appear to come
in only when for some reason a damage payment is not owed. Thus “If one gives
another a blow which does not injure him to the extent of a pěrutah (a
coin of small value), he incurs flogging, for there is no compensation in this
case (to exempt him on the grounds) that the negative comandment is rectified
by monetary compensation.”

Murder

Ordinary murder is a capital offense not redeemable by a
money payment, but there are possible complications. Thus someone who kills
indirectly, for instance by hiring an assassin, is not subject to death penalty
under religious law, although a king of Israel[25] may
put him to death by royal decree for the good of society or the court as an
emergency measure.

“If the king does not kill them, and the needs of the
time do not demand their death as a preventive measure, it is nevertheless the
duty of the court to flog them almost to the point of death, to imprison them
in a fortress or prison for many years, and to inflict every punishment on them
in order to frighten and terrify other wicked persons, lest such a case become
a pitfall and a snare, enticing one to say, ‘I will arrange to kill my enemy in
a round-about way, as did So-and-So; then I will be acquitted.’”

One of my favorite bits of legal logic concerns someone
dying of a fatal organic disease. Maimonides starts by saying that the killer
of such a person is legally exempt—although, of course, one must be very
sure that the disease is incurable and fatal. He goes on to add that if someone
suffering from such a disease kills he is to be put to death, provided he is so
considerate as to do the killing in the presence of a court.

What if he doesn’t? Convicting him then depends on
witnesses. Witnesses can only be trusted in a capital case if they themselves
are at risk of punishment if their testimony is false. In this case, conspiring
to use false testimony convict someone who is innocent would result in no legal
penalty, since the victim would be someone dying of a fatal organic disease and
there is no penalty for killing such a person. Since the witnesses are at no
risk of being put to death if their testimony is false their testimony cannot
be trusted. Since their testimony cannot be trusted, there is no way of convicting
the murderer. So someone dying of a fatal organic disease can commit murder
with impunity, providing he takes care not to do it in the middle of the
courtroom.

Personally, after reading how the court is to deal with
a different sort of rules lawyer, I don’t think I’d try it.

Maimonides goes on to describe, in some detail, the
rules associated with the avenger of blood (the heir of a killer’s victim) and
the cities of refuge—of which, like kings of Israel, there had been none
for more than a thousand years. A killer was supposed to go to one of the
cities of refuge, be brought from there to the court of the city where the
killing occurred, tried and, if guilty of deliberate murder, put to death by
the avenger of blood. If found guilty of unintentional killing he was to be
sent back to the city of refuge to remain there until the high priest (also
nonexistent in Maimonides day) died. En route to or from the city of refuge, he
could be killed by the avenger of blood without penalty.[26]

All of which looks rather like the remnant of a
pre-existing feud system untidily integrated into its replacement. We will see
something similar in the next chapter, when we look at how murder is treated
under Muslim law.

[1]Responsa
were replies by legal experts, in particular by the heads of the Babylonian
academy, to questions sent to them; Elon quotes an estimate that several
hundred thousand responsa survive.

[2]
Assuming this is true, it fits the same pattern we observed in Chinese law,
where reporting one’s father’s crimes to the Imperial authorities resulted in
the son being punished—by the Imperial authorities.

[3]I
am using "legal authorities" for what Elon refers to as
"halakhic authorities," individuals considered to be expert in Jewish
law. The term is not limited to those with some sort of official position,
although many, perhaps most, halakhic authorities were judges, members of the
Sanhedrin, high priests, or rabbis. As will become clear, a good deal of the
definition of Jewish law, especially after the destruction of the Temple and
the Kingdom of Israel, came out of a reputational system rather than a system
of formal authority.

[4]
An object of clay that had been rendered impure, polluted through some agency
such as contact with a corpse, could be purified by being broken up. The
question was whether a clay oven that had been broken up and then reassembled
with sand between the pieces was ritually pure or impure.

[5]
A third Rabbi, wanting a view of the story from the other side, asked the
prophet Elijah what God had been doing in heaven during the debate. "He
smiled, saying, 'My children have bested me. My children have bested me.'"

[6]
In the talmudic account, the ban on R. Eliezer has catastrophic consequences. A
third of the wheat crop, a third of the barley crop, and a third of the olive
crop are destroyed, followed by additional signals of divine wrath. A gigantic
wave almost sinks the ship carrying Rabbi Gamaliel, the head of the Sanhedrin
and a leader of the majority faction; he saves himself by informing God that what
was done with regard to R. Eliezer was not for his own honor, or that of his
kindred, but to preserve the people of Israel. R. Eliezer’s wife is also the
sister of R. Gamaliel. She forbids her husband from falling on his face in
petitionary prayer. Eventually, when she is distracted, he does―and
Gamaliel promptly dies. Precisely what the implication of this part of the
story is intended to be is unclear, at least to this reader. For a more
detailed account and discussion, see: http://daviddfriedman.blogspot.com/2010/07/furnace-of-akhnai-story-and-puzzle.html

[7]
It may occur to those suspicious of history written by the winners―the
Talmud was produced after the triumph of Hillel over Shammai―to wonder
how it is that a divine voice in support of Eliezer, hence of Shammai, is
rejected with “It is not in Heaven,” but a divine voice in favor of Hillel
settles the matter.

[8][reference
to Islamic fake miracle worker]. Jewish ones in The Joys of Yiddish?

[9]Bal tigra (“you shall not take away”)
the prohibition (Deut. 4:2, 13:1) against taking away from any commandments (mizvot) set forth in the Torah …(G-2)

[10]Bal tosif (“you shall not add”) the
prohibition (Deut. 4:2, 13:1) against adding to the commandments (mizvot) set forth in the Torah.” (G-2)

[11]Deuteronomy
17:8-11. "You shall act in accordance with the instructions given you and
the ruling handed down to you; you must not deviate from the verdict that they
announce to you either to the right or to the left." Here "they"
are taken to be the sages, the halakhic authorities.

One response to a
similar argument used to justify communal legislation in the 14thcentury was to distinguish between the
power to interpret ambiguity in Torah
and the power to set aside a rule of the Torah.
It was a good point, given that Torah
explicitly forbade the later activity, but raised about fifteen hundred years
too late.

[12]Hora'at sha'ah (“a directive for the
hour”) a temporary legislative measure permitting conduct forbidden by the
Torah when such legislation is a necessary precaution to restore people to the
observance of the faith; some legislation originally adopted or justified as a
temporary measure has become an established part of Jewish law.

[13]Le-migdar milta (“to safeguard the
matter”) the principle that authorizes the halackhic authorities, as a
protective measure, to adopt enactments in the field of criminal law the
prescribe action the Torah prohibits.

[14]Shev
ve-al ta’aseh (“sit and do not
do”) a category of legislation directing that an affirmative precept,
obligatory according to Biblical law, not be performed.

[15]See
Maimonides, Mishnah Torah 12 (The Book of
Acquisitions), Chapter VI and VII. For a discussion of some of the ways of
evading the restriction and attempts to limit them, see the Wikipedia article on Loans and Interest in Judaism.

[16]For
example, “It is a time to act for the Lord, for they have violated your Torah.”
(Psalms 119:126) was interpreted as authorizing the violation of Torah when it
was necessary to act for the lord.

The best defense
of such interpretation I have seen, from inside the belief system, was provided
by an online correspondent: "The Perfect One Who made the Law also made
the loopholes."

[17]As we will see in a later chapter, much of this
parallels later developments in Islamic law. There too, a legal code nominally
built on an unchangeable text, the Koran and Hadith, was in fact the result of
extensive interpretation and extensively supplemented by rules created by
secular authorities.

[18]The
authority of the king was justified, in the view of some legal authorities, by
the passage in Torah warning the Israelites about all the terrible things that
a king would do if they had one―taken, oddly to the modern reader, as
implying that all of those things were things the king was entitled to do.

And he said, This will be the manner of the king
that shall reign over you: He will take your sons, and appoint them for
himself, for his chariots, and to be his horsemen; and some shall run before
his chariots. And he will appoint him captains over thousands, and captains
over fifties; and will set them to ear his ground, and to reap his harvest, and
to make his instruments of war, and instruments of his chariots. And he will
take your daughters to be confectionaries, and to be cooks, and to be bakers.
And he will take your fields, and your vineyards, and your oliveyards, even the
best of them, and give them to his servants. And he will take the tenth of your
seed, and of your vineyards, and give to his officers, and to his servants. And
he will take your menservants, and your maidservants, and your goodliest young
men, and your asses, and put them to his work. He will take the tenth of your
sheep: and ye shall be his servants. And ye shall cry out in that day because
of your king which ye shall have chosen you; and the LORD will not hear you in
that day. [I Samuel 8]

On the other hand, Elon, discussing an incident in
scripture, writes p. 1026: “Thus, even a king punishing conspirators against
his throne was bound to observe the basic principles of Jewish law, from which
his rank gave him no privilege to deviate.”

[19]Instead
of giving a ring, the marriage could be effected by sexual intercourse, an
option that was generally disfavored―and raised a problem for the
approach adopted by some communal authorities for justifying the imposition of
additional requirements, as described below.

[20]I
am oversimplifying a little. A compelled divorce, like a contract under duress,
was not legitimate and so did not take effect. But legal compulsion did not
count as compulsion.

[22]
In each of these cases, Maimonides provides a detailed discussion covering a
wide range of variant situations; I am reporting only on the simplest version
of the relevant rules.

[23]
Unless it was a sheep, taken and butchered, for which he owes four times the
value, or an ox, for which he owes five times—in both cases due to text
in the Torah. A minor or a slave who steals owes only the value of what he
stole, and a minor who steals something and loses it owes nothing. Both the
minor and the slave, however, are subject to corporal punishment.

[24]
A tort can of course be intentional, but we normally treat a deliberate attack
that wounds as a crime. Maimonides includes it in the same book as an injury
due to a straying ox, the same chapter as the injury done by a man who is blown
off a roof by the wind and wounds someone or damages something as a result.

[25]
In this case as in many others, Maimonides ignores temporary current circumstances,
such as the nonexistence of either a king of Israel or the Temple, that might
make particular legal rules inapplicable.

[26]
I am oversimplifying; there were three different sorts of unintentional
killers, and the rule I describe applied to only one of them.